fer. Dewacal Nyansber Tha Mth be dang IN THE HIGH COURT OF TANZANIA aon LABOUR DIVISION a Ope 4 [ee 6) vq ATDAR ES SALAAM of Vd pe REVISIONNO 162 OF 2011 . 0 Bore 2 4e G _ ABUBAKAR HAJI YAKUBU .... s++e APPLICANT 1% * ual 4 VERSUS ' pt . AIR TANZANIA CO, LTD..........., RESPONDENS ra 1 Original/CMA/DSM/KIN-ILA/269/08) 1 RULING 10/08/2012 &24/10/2012 Rweyemamu, R. M. The applicant filed an employment dispute in the Commission for Mediation and Arbitration (CMA) raising a number of claims against the respondent/employer. One of the claims was on unfair termination. The arbitrator’s decision was; that termination was substantively unfair (i.e, was made for an invalid reason) because the alleged incompatibility was not proved; and also that, termination was procedurally unfair i.e., proper procedures were not observed, As remedy, the arbitrator awarded the applicant the relief of reinstatement without loss of remuneration. Another claim was for salary arrears explained as arising from withheld salary due to discrimination. The arbitrator dismissed this claim on ground that, the same was based on an increment of salary proposed by the board, but, without proof that the same was approved in respect of the applicant.The other claim raised by the applicant during arbitration was that of discrimination. The arbitrator declined to consider and decide it on ground that it was not pleaded in Referral CMA Form No 1 (RF1). Finally, the applicant sought compensation to the tune of shillirigs 100,000,000/=as general damages suffered because of unfair termination. The arbitrator decided that the claim was not awardable because by the reinstatement order made, the applicant had been placed ina position he would have been in, if termination had not taken place. The applicant was dissatisfied, by part of the arbitrator’s decision and filed this application seeking revision on two grounds, and I paraphrase: 1. That the Commission erred in evaluation of evidence when it concluded that the employer had not approved salary increment to the applicant to the tune of shillings 4,800,000/=, thus wrongly dismissing the applicant’s claim for arrears of underpaid salary. 2. That the Commission erred in Jaw and in fact, in holding that the order for reinstatement without loss of remuneration disentitled the applicant from a claim of general damages. Hearing in this court proceeded by way of written submission and parties were represented: by Advocates from Mzizima Law Associates and Law Associates, for the applicant and respondent, respectively. Submitting on the 1* ground, Counsel for the applicant argued that; there was enough evidence namely minutes of the Board to prove that the applicant was given salary increase; that the respondent was served notice to produce the said minutes during arbitration- which minutes would have proved that he had been 2given salary increase; that the employer failed to comply with the notice but the arbitrator ignored that fact in the decision. ‘The respondent opposed the application and supported the whole of the arbitrator’s decision. On the first issue, the respondent argued that; payment of Shs. 4.9 Million was a mere proposal, and that the said proposal made on 19/10/2006 could not have covered the applicant who was by then, on suspension. The respondent further argued that, if indeed the applicant believed there had been a salary increment at the alleged time, he could have, acted timely on the anomaly of under payment, instead of waiting until termination to raise the claim. Even then, if that claim existed, it would have been time barred by 2008 when the applicant filed the present claim at CMA. After checking the record, it is my decision that the following facts negate the applicant’s arguments on the issue of salary arrears: One, annexure AHY3 to the applicant’s affidavit filed in proof of the case in the CMA, indicates that the- amount stated was a mere proposal. Further, part of annexure AHY3-the applicant’s E-mail, show that there were further discussion on 25/9/2006 indicating that there were justifiable reasons why salary increment had been made in respect of only other individuals working under the applicant. Two, the reasons advanced in support of the applicant’s discrimination claims during arbitration contradict the allegation that the Board had approved salary increment of his part. That is evidenced by contents of paragraph 7 and 9 of the applicant’s affidavit in proof of the case at the CMA. The whole discrimination claim, (which claim was dismissed by CMA), was based on allegation of a discriminatory salary structure, where the applicant’s subordinates were receiving 3a higher salary of Shs. 4,100,000/= while he was receiving Shs. 1,782,102/= per month, only. From the facts pointed to above, it is my opinion that the arbitrator reached a reasonable conclusion on the evidence when he concluded that, the applicant was not entitled to salary arrears on ground of under payment of the approved salary increment. Consequently, as I find no other revisable erlor on that aspect, I confirm the arbitrator’s decision. 7 ' The applicant also submitted on a ground not raised in the applicant’s pleadings filed in this court. That ground was on the issue of discrimination. In his submission, the applicant faulted the arbitrator for refusing to decide that ground for reason that, the same was not raised or pleaded in the pleadings to the CMA. According to the applicant, the issue of unfair termination pleaded_in RFI automatically includes/incorporates the issue of discrimination. The respondent made no reply on that ground, and I will not deliberate on it because it was raised as described; but, for benefit of other stakeholders, I wish to state, even if by way of observation that: A plea of unfair termination does not automatically include/mean a plea of discrimination. Why? First in law, the two form different causes of action. Under sections 7(4) and 102 (3) of the Employment and Labour Relations Act, 6/2004 (the Act), discrimination in employment is an offence while unfair termination under that Act, is simply an unfair labour practice. Second, under section 37(3)(b) of the Act, discrimination makes termination automatically unfair while unfair termination, simply refers to termination for an jnvalid reason and/or using improper procedure (section 37 (2) (a) &(b). In other 4words, it is possible for an employee to have a cause of action based on discrimination even, where such discrimination has not caused termination of. employment. But, both unfair termination and discrimination are aspects of unfair labour practice. . The second ground for revision raises the issue of, whether an order for reinstaterpent without loss of remuneration, disentitled the applicant from a claim of general damages, as concluded by the arbitrator. 1 The arbitrator supported his position by reasoning that by ordering reinstatement “the Commission has placed the complainant in the position “he would have been in if (in which the) termination had not taken place. After going through the relevant law, my observations and decision are as hereunder: 1. I do not agree with the arbitrator that an order of reinstatement without loss of remuneration automatically disentitle an employee to an award of general damages because section 40(2) clearly provide clearly that such an order, “shall be in addition to, and not a substitute for, any other amount to which the employee ‘may be entitled in terms of any law or agreement.” For example, the order would not disentitle the employee from a granted of pleaded specific damages, general damages or even exemplary damages arising from unfair termination awardable under any other law or agreement. 2. Before proceeding, I wish to emphasize that the purpose of awarding damages in unfair termination cases is not only to restore the injured party, as far as possible, to the financial position prior to termination, but also to 5act as solatium for other personal injury. It is undisputed therefore, that an employee may have a number of claims arising from unfair termination, for which remedy can be claimed. . Generally, general damages are atvardable for injury which the law will presume to be the direct, natural and probable or foreseeable consequences of an act complained of. . Admittedly, employment termination not only leads to pecuniary loss, but invariably includes other personal injuries e.g. pain and suffering due to injured feelings, loss of self esteem etc. Further, the pecuniary damages in employment cases include those based on loss of earnings, and other consequential costs. . On the evidence in this case, it is undisputed that the applicant suffered pecuniary loss in a form of lost earnings, it is my first decision that these were adequately compensated for in the reinstatement order. Consequential pecuniary loss however, was not pleaded and therefore is not awardable. As regards to claims of general damages as compensation for personal injury, it is a long established rule of law that, in order for damages to be granted, they must be certain. For example, when damages are sought for personal injury like ‘mental torture, anguish etc, there must be clear evidence of such distress, anguish, or any other alleged personal injury. . Before considering whether the applicant had adduced evidence to justify award of such damages, I feel duty bound to first decide whether, if such evidence existed, the CMA would have had jurisdiction to entertain a claim of general damages in labour matters based on breach of contract, tort, or common law. . After considering the relevant law, it is my considered decision that the CMA has such jurisdiction. Why?9. The relevant laws are; the Labour Institutions Act, No.7/2004 which, under section 14, prescribes functions of the CMA. These include mediation and arbitration of any dispute. refereed to it, in terms of any labour law. That provision must be read together with section 88 (1) of the Act as amended by the Written Laws (Miscellaneous Amendment) Acts No. 8 /2006 and 3 of 2010.(Herein, the amendments). Section 88 (1) (b) (ii) defines a dispute as to include a complaint. Now, under the first amendment, that is, Act No. 8/2006, the ambit of the word complaint for purpose of arbitration was expanded by adding the words: ' “Or any other employment or labour matter falling under common law, tortuous liability in which the amount claimed is below the pecuniary jurisdiction of the High Court”(Emphasis mine). That part was amended again by Act 3/ 2010 referred to above, but, only by removing the bolded part. 10.The second reason for finding that CMA has jurisdiction to entertain a claim based on common law and tortuous liability is my interpretation of section 40 (1) and (2) of the Act. Section 40(1) empowers both the arbitrator and the Labour Court to grant an employee any other amount that such an employee is entitled to in terms of any law or agreement. In my opinion, the implications thereof is that; the CMA has jurisdiction to entertain labour claims arising from any other law or agreement. 11.The next question I have to consider and answer is; whether the applicant was entitled to the general damages claimed for- which he put at shillings 1,000,000/= million. The applicant described justification of the claim for damages in his affidavit in proof of the case at the CMA as: “ 16. Asa result of the act of the Respondent to unfairly terminate my employee services on the purported ground of incompatibility. I, as a competent and welltrained professional, have suffered mental torture and / or anguish and the same act has caused the general public to look down on me, 17, The respondent's purported termination of my employment service and the ‘manner in which it was carried out has completely denied me of lawful income and the same has severely damaged my reputation, and as such have has sufitred damages.” 12, In view of what is stated under observation 6 herein above, the next issue for decision, is whether there is proof. I find that the applicant did not adduce evidence to warrant grant of the claimed general damages. What is contained in ground 16 and 17 of the affidavit quoted above, are mere allegation. They do not qualify as per criteria set in observation 6 — which states that such claims must be certain and accompanied with clear evidence. 13. Admittedly, the unfair termination must have caused personal injury as already observed under- 4 above, but applicant failed to show proof of the same. In view of that, I find that the applicant in the circumstance would be entitled to nominal damages. In the final result, I decide that: a. The arbitrator’s finding that an order of reinstatement disentitles the applicant from a claim of general damages was in err, I quash it. The rest of the arbitrator’s decision on the claims raised is hereby confirmed. b. The applicant did not establish general damages claimed with required certainty. c. The applicant did suffer personal injury due to unfair termination, but he failed to show proof of the same. In view of that, he is entitled to payment of nominal damages as solatium .d. using powers vested in this court under section 91 (4) (a) of the Act read together with rule 28 of the Labour Court Rules, GN 106/2007 I order the respondent to pay to the applicant nominal damages at the tune of TShillings 5 Million. It is so ordered. R.M.Rweyemamu JUDGE 22/10/2012 DATE: 24/10/2012. , CORAM: Hon. R. M. Rweyemamu, J. APPLICANT: Present in person FOR RESPONDENT: Mr. Mbwambo advocate CC: Josephine Mbasha. COURT: — This matter is for ruling. Ruling delivered this 24" day of October 2012 in presence of parties. Right of appeal explained. R.M.Rweyemamu JUDGE 24/10/2012